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Hill v. State

Court of Appeals of Louisiana, First Circuit

June 17, 2015

NAVIS HILU MICHAEL STEMSON/AMANDA STENSON, ILLUMANI JOHNSON, ERIN COMEAUX, LATRICIA BOWERS, CARRIE ADAMS, COURTNEY DUMAS, CATHERINE GOLDEN, AND CHOICE FOUNDATION
v.
BOBBY JINDAL, IN HIS OFFICIAL CAPACITY AS GOVERNOR, STATE OF LOUISIANA; STATE OF LOUISIANA, THROUGH THE DIVISION OF ADMINISTRATION; STATE OF LOUISIANA, THROUGH THE DIVISION OF ADMINISTRATION, OFFICE OF CONTRACTUAL REVIEW; KRISTY NICHOLS IN HER OFFICIAL CAPACITY AS COMMISSIONER, DIVISION OF ADMINISTRATION FOR THE STATE OF LOUISIANA; AND PAMELA BARTFAY RICE, IN HER OFFICIAL CAPACITY AS INTERIM DIRECTOR, OFFICE OF CONTRACTUAL REVIEW, DIVISION OF ADMINISTRATION FOR THE STATE OF LOUISIANA and NAVIS HILL, MICHAEL STENSON, AMANDA STENSON, ILLUMANI JOHNSON, ERIN COMEAUX, LATRICIA BOWERS, CARRIE ADAMS, COURTNEY DUMAS, CATHERINE GOLDEN, AND CHOICE FOUNDATION
v.
BOBBY JINDAL, IN HIS OFFICIAL CAPACITY AS GOVERNOR, STATE OF LOUISIANA; STATE OF LOUISIANA, THROUGH THE DIVISION OF ADMINISTRATION; STATE OF LOUISIANA, THROUGH THE DIVISION OF ADMINISTRATION, OFFICE OF CONTRACTUAL REVIEW; KRISTY NICHOLS IN HER OFFICIAL CAPACITY AS COMMISSIONER, DIVISION OF ADMINISTRATION FOR THE STATE OF LOUISIANA; AND PAMELA BARTFAY RICE, IN HER OFFICIAL CAPACITY AS INTERIM DIRECTOR, OFFICE OF CONTRACTUAL REVIEW, DIVISION OF ADMINISTRATION FOR THE STATE OF LOUISIANA

On Appeal/Supervisory Writ from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana Trial Court No. 0632170 Honorable Todd Hernandez, Judge

STEPHEN H. KUPPERMAN MICHAEL A. BALASCIO NEW ORLEANS, LA ATTORNEYS FOR PLAINTIFFS-APPELLEES NAVIS HILL, MICHAEL STENSON, AMANDA STENSON, ILLUMANI JOHNSON, ERIN COMEAUX, LATRICTA BOWERS, CARRIE ADAMS, COURTNEY DUMAS, CATHERINE GOLDEN, AND CHOICE FOUNDATION

JIMMY R. FAIRCLOTH, JR. CHRISTIE C. WOOD ALEXANDRIA, LA ATTORNEYS FOR DEFENDANT-1st APPELLANT BOBBY JINDAL, IN HIS OFFICTAL CAPACITY AS GOVERNOR, STATE OF LOUISIANA

J. WENDELL CLARK MARK L. BARBRE BATON ROUGE, LA AND GREG MURPHY BATON ROUGE, LA AND CARLOS A. ROMANACH ELIZABETH BAKER MURRILL BATON ROUGE, LA ATTORNEYS FOR DEFENDANTS-2nd APPELLANTS STATE OF LOUISIANA THROUGH THE DIVISION OF ADMINISTRATION, OFFICE OF CONTRACTUAL REVIEW, KRISTY NICHOLS, IN HER OFFICTAL CAPACITY AS COMMISSIONER OF ADMINISTRATION, AND PAMELA BARTFAY RICE, IN HER OFFICTAL CAPACITY AS INTERIM DIRECTOR OF THE OFFICE OF CONTRACTUAL REVIEW

CHARLES M. GORDON, JR. PHILLIP W. PREIS CRYSTAL D. BURKHALTER CAROLINE P. GRAHAM CHARLES M. THOMPSON JENNIFER R. DIETZ JOHN N. GRINTON BATON ROUGE, LA ATTORNEYS FOR INTERVENOR-APPELLEE THE LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION

BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.

PETTIGREW, J.

Defendants challenge the trial court's judgment, granting a preliminary injunction in favor of plaintiffs and intervenor and denying their exceptions raising the objections of no cause of action, lack of subject matter jurisdiction, prematurity, and improper cumulation. For the reasons that follow, we amend the trial court's September 10, 2014 judgment and affirm as amended. We also deny defendants' application for a writ of supervisory review.

FACTS AND PROCEDURAL HISTORY

This action commenced with a petition for preliminary and permanent injunctions, and declaratory relief filed on July 22, 2014, by plaintiffs herein, Navis Hill;[1]Michael and Amanda Stenson;[2] Illumani Johnson;[3] Erin Comeaux;[4] Latricia Bowers;[5]Carrie Adams;[6] Courtney Dumas;[7] Catherine Golden;[8] and Choice Foundation, [9] seeking to enjoin defendants herein, Bobby Jindal, in his official capacity as the Governor of the State of Louisiana; the State of Louisiana, through the Division of Administration ("DOA") and DOA, Office of Contractual Review ("OCR"); Kristy Nichols, in her official capacity as Commissioner of DOA; and Pamela Bartfay Rice, in her official capacity as Interim Director of OCR (collectively the "DOA defendants") from interfering with the

Board of Elementary and Secondary Education's ("BESE") implementation of educational standards in Louisiana schools, through audited contracts. Along with their petition, plaintiffs filed a motion for preliminary injunction, which was set for hearing by the trial court. Plaintiffs alleged that defendants' actions, including Governor Jindal's Executive Orders Nos. BJ 2014-6[10] and BJ 2014-7[11] and OCR's June 18, 2014 suspension of contracts related to student assessments for the 2014-1015 school year, amounted to an unconstitutional violation of the separation of powers doctrine and exceeded the lawful scope of their authority. See La. Const, art. II, §§ 1-2.

On July 29, 2014, BESE filed a petition for intervention also seeking to enjoin defendants from enforcing, applying, and/or implementing, in whole or in part, Executive Orders Nos. BJ 2014-6 and BJ 2014-7, as well as OCR's actions with regard to the contracts at issue. BESE filed a motion for preliminary injunction on August 6, 2014. On August 4, 2014, Governor Jindal filed a third party demand against BESE seeking a declaration that the Memorandum of Understanding ("MOU"), entered into between Partnership For Assessment of Readiness For College and Careers Members ("PARCC") and the State, was invalid and unenforceable, or alternatively, a declaration of the rights of the State under the MOU and the legal relationship between the parties to the MOU.

In response to plaintiffs' suit, defendants filed exceptions raising the objections of no right of action, no cause of action, lack of subject matter jurisdiction, prematurity (failure to exhaust administrative remedies), and improper cumulation of actions. In response to BESE's intervention, the DOA defendants filed exceptions raising the objections of no cause of action, lack of subject matter jurisdiction, prematurity, and improper cumulation.

On August 13, 2014, the trial court denied defendants' objections as to plaintiffs' petition. A judgment was signed in accordance with this ruling on August 26, 2014. Defendants sought supervisory review of the trial court's ruling, and on November 14, 2014, this court issued the following:

WRIT REFERRED TO THE PANEL TO WHICH THE YET-TO-BE LODGED APPEAL OF THE SEPTEMBER 10, 2014 JUDGMENT GRANTING [PLAINTIFFS'] AND THE BOARD OF ELEMENTARY AND SECONDARY EDUCATION'S PETITIONS FOR INJUNCTIVE RELIEF IS ASSIGNED.

Hill v. Jindal, 2014-1484 (La.App. 1 Cir. 11/14/14) (unpublished writ action).

The motions for preliminary injunction filed by plaintiffs and BESE proceeded to hearing on August 18, 2014, at which time the trial court also considered the DOA defendants' exceptions as to BESE's intervention. The trial court heard testimony, considered documentary evidence introduced by the parties, and took the matter under advisement. The trial court submitted a written ruling on August 19, 2014, granting the motions for preliminary injunction filed by plaintiffs and BESE, seeking to enjoin defendants from enforcing, applying, and/or implementing, in whole or in part, Governor Jindal's Executive Orders Nos. BJ 2014-6 and BJ 2014-7, and OCR's June 18, 2014 suspension of State issued contracts relating to the implementation of State educational assessments. The trial court further denied the DOA defendants' exceptions related to BESE's intervention.[12] The trial court signed a judgment on September 10, 2014, providing, in pertinent part, as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the exceptions of prematurity, no cause of action, lack of subject matter jurisdiction, and improper cumulation of actions be and are hereby DENIED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the motions for preliminary injunction filed by plaintiffs and by the Louisiana Board of Elementary and Secondary Education be and are hereby GRANTED, and that all defendants and anyone acting or purporting to act on behalf of any of them are hereby enjoined, restrained and prohibited from enforcing, applying and/or implementing, in whole or in part, Governor Jindal's Executive Orders Nos. BJ 2014-6 and BJ 2014-7, as well as the suspension of contracts related to state educational assessments, specifically including the 2003 and 2011 contracts with Data Recognition Corporation, together with all amendments to such contracts.

Pertinent Background Facts and Information

Pursuant to La. Const, art. VIII, § 1, the Legislature shall provide for the education of the people of the State and shall establish and maintain a public educational system. At the direction of the Legislature, BESE is given the power to supervise and control the State's public schools and implement the Legislature's educational policy. Aguillard v. Treen, 440 So.2d 704, 709 (La. 1983); La. Const, art. VIII, § 3(A).

During the August 18, 2014 hearing on the motions for preliminary injunction, State Superintendent of Education, for the Department of Education ("DOE"), John White testified at length regarding the issues leading up to this lawsuit. He indicated he had been hired as superintendent in January 2012. Superintendent White discussed the Louisiana Education Assessment Program ("LEAP"), which he explained was part of the Louisiana Competency-Based Education Program and was first implemented in 1999, to establish an education system based on benchmarks. See La. R.S. 17:24.4(A)(1), (2). He noted that the LEAP program includes a series of tests for grades three through eleven in English, Math, Social Studies, and Science, and BESE and DOE are charged with implementing the program in the school system. Superintendent White added that over time, these tests have changed as the needs and expectations of the school system have evolved. Superintendent White further testified that the results of these LEAP assessments have significant consequences for the superintendents of local school systems and affect school ratings, teacher evaluations, and compensation, and determine whether students are promoted to the next grade level or retained.

When asked about the Common Core State Standards ("Common Core"), Superintendent White indicated Common Core had been created by the National Governor's Association and the Counsel of Chief State School Officers in an effort to achieve "common standards" and "common expectations" across the participating states with regard to grade level expectations. He noted that more than eighty percent of states had approved Common Core for use in their school system. In July 2010, BESE voted to approve the adoption of Common Core. According to Superintendent White, his predecessor, John Pastorek, had begun implementing Common Core in the 2010-2011 school year.

Superintendent White recalled for the trial court the role DOE played in codifying the State's commitment to Common Core. With his attention focused on Act Number 275 of the 2012 Regular Session, Superintendent White stated that members of his staff assisted in the drafting of the legislation, conversed with Governor Jindal's staff, and testified in both chambers in support of the bill. According to Superintendent White, everyone supported the passage of Act 275 and it "flew through both the House and the Senate."

As amended by Acts 2012, No. 275, § 1, La. R.S. 17:24.4(F)(1)(d), mandated that beginning with the 2014-2015 school year, the standards-based assessments implemented by BESE be based on "nationally recognized content standards that represent the knowledge and skills needed for students to successfully transition to postsecondary education and the workplace, " The Legislature further ordered that the "rigor of each standards-based assessment, at a minimum, shall be comparable to national achievement tests." La. R.S. 17:24.4(F)(l)(e) (as amended by Acts 2012, No. 275, § 1). When asked about his understanding of the meaning of "nationally recognized content standards, " Superintendent White indicated that this was a reflection of the State's commitment to Common Core and the PARCC tests.

Superintendent White testified regarding the State's relationship with PARCC, a voluntary collaborative that engages experts and educators from its member States to design high-quality standardized test questions and test policies that allow for the comparison of student achievement across states. In June 2010, Louisiana entered into a MOU with other member states of PARCC. This agreement was signed by the Governor, as well as then State Superintendent of Education John Pastorek, and the President of BESE, and committed the State to participate ...


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